(a) Surety; form of affidavit. Unless the court orders otherwise, surety shall be: 1. an insurance company authorized to execute the undertaking within the state, or 2. a natural person, except an attorney, who shall execute with the undertaking his affidavit setting forth his full name and address and that he is domiciled within the state and worth at least the amount specified in the undertaking exclusive of liabilities and of property exempt from application to the satisfaction of a judgment.
§ 2502.Surety; form of affidavit; two or more undertakings; condition; acknowledgment
Article 25. Undertakings · Last amended 1970 · Last verified July 21, 2026
In one sentenceCPLR 2502 sets the qualifications a surety must meet, requires an individual surety to file a financial affidavit, allows multiple undertakings to be combined in one instrument, supplies a default condition when none is stated, and requires the undertaking to be acknowledged like a deed.
Full Text of CPLR 2502
(b) Two or more undertakings. Where two or more undertakings are authorized or required to be given, they may be contained in the same instrument.
(c) Condition. Where no condition is specified in an undertaking in an action or proceeding, the condition shall be that the principal shall faithfully and fairly discharge the duties and fulfill the obligations imposed by law, or court order. Where the condition specifies that the undertaking is to be void upon payment of an amount or performance of an act, the undertaking shall be construed in accordance with the provisions of section 7-301 of the general obligations law.
(d) Acknowledgment. The undertaking shall be acknowledged in the form required to entitle a deed to be recorded.
Plain-English Summary
Not just anyone can stand as surety on a New York undertaking. CPLR 2502(a) limits the role to an insurance company authorized to write undertakings in the state, or a natural person — anyone except an attorney — who signs an affidavit giving a full name and address, confirming New York domicile, and swearing to being worth at least the amount of the undertaking, over and above liabilities and any property that is exempt from being applied to satisfy a judgment. That affidavit is what lets a court and an opposing party judge whether the surety can cover the obligation if it comes due.
The section then handles three procedural points. Subdivision (b) lets two or more required undertakings be combined into a single instrument, sparing a litigant from filing duplicate paperwork when more than one undertaking applies to the same matter. Subdivision (c) supplies a default condition for any undertaking that does not specify one — that the principal will carry out whatever duties the law or a court order assigns — and directs that an undertaking conditioned on payment or performance be construed under General Obligations Law section 7-301. Subdivision (d) requires the undertaking to be acknowledged in the same form required to record a deed, tying it to the same formality New York uses for real property transfers.
Frequently Asked Questions
Who can serve as a surety on a New York undertaking?
CPLR 2502(a) allows either an insurance company authorized to execute undertakings in the state, or a natural person other than an attorney who files an affidavit confirming New York domicile and net worth at least equal to the undertaking amount.
What must an individual surety's affidavit include?
The affidavit must give the surety's full name and address, state that the surety is domiciled in New York, and confirm the surety is worth at least the amount specified in the undertaking, excluding liabilities and property exempt from satisfying a judgment.
Can one document cover two required undertakings in the same case?
Yes. CPLR 2502(b) allows two or more undertakings that are authorized or required to be contained in the same instrument.
What condition applies if an undertaking does not state one?
Under CPLR 2502(c), the default condition is that the principal will carry out the duties and obligations that the law or a court order assigns.
Can an attorney act as surety on their client's undertaking?
No. CPLR 2502(a) expressly excludes an attorney from serving as the individual natural-person surety on an undertaking.
Advisory Committee Notes
Subd (a) of this section replaces the first clause of CPA §§ 156 and 698, the second sentence of § 565, the second paragraph of § 1264, and § 853 of the CPA and subds 2 and 4 of RCP 25 and 27. The subdivision permitting one surety embodies the substance of subd 2 of RCP 25. Where more than one surety is required by a specific rule or statute or where the court requires more than one surety, such specific requirement would govern. Much of the risk attributed to the use of individual sureties has been eliminated by other provisions of this act. See § 2503 covering undertakings larger than one thousand dollars. The requirement in former rule 25(4) that the surety be worth twice the sum specified in the undertaking has been omitted. The surety’s liability lies only in contract and not in tort, and he may be held only for the sum specified in his undertaking. Matter of Ayvazian’s Estate, 157 Misc 306, 308, 283 NY Supp 555, 558 (Surr Ct 1935). No case has been found where twice the amount of actual damages has been awarded to one secured by an undertaking. “Though the bond or obligation is generally in double the sum which is owing, . . . yet the courts of Equity will not permit a man to take more than in conscience he ought; namely, his principal, interest, and expenses.” Clark, Alphabetical Epitome of the Common Law of England 56 (1778). The provision for additional security in the event that the surety later becomes insufficient is sufficient protection against a shrinkage in the surety’s assets. See § 2508. CPA § 152, which provided for justification of several sureties in a smaller sum in the court’s discretion where “the penalty of the bond, or twice the sum specified in the undertaking, is five thousand dollars” or more, has been omitted as unnecessary. Under § 2503(a), all undertakings in an amount of more than one thousand dollars on which individuals are surety must be secured by a lien on real property, unless the court orders otherwise or unless a deposit of cash or certain government bonds is offered. The use of the plural “persons” in § 2503(a) indicates that more than one surety may be offered; more than one tract of real property may also be offered so long as the total amount is equal to the amount specified in the undertaking. The court has discretion under this subdivision to require or permit more than one surety. Thus, the problem at which CPA § 152 was directed—hardship in a case where one individual surety might be required to justify in an amount so high as to be oppressive—is obviated. The problem does not arise with respect to surety companies. Elimination of § 152 was warranted on the further ground that the provision for justification in twice the sum specified in the undertaking, probably the prime cause of the hardship which § 152 was intended to alleviate, is omitted from the new CPLR. The provision of former rule 25(4) that the surety be a householder or freeholder within the state is replaced by a requirement that domicile be the only connection with the state which a surety need demonstrate. This requirement when read with CPLR § 313 (personal service on domiciliaries outside the state) furnishes sufficient guaranty of ability to obtain service upon sureties if an action against them becomes necessary. The term domicile rather than residence is used because the courts have adopted no settled definition of the word “resident”; its meaning “may depend upon the nature of the subject-matter of the statute as well as the context in which the words are used.” Rawstorne v McGuire, 265 NY 204, 208, 192 NE 294, 295 (1934). The fixed requirement in former rule 25(4) that the surety be a householder or freeholder has been eliminated. It would disqualify few who qualify as a domiciliary. A householder for the purpose of bail need not be the head of a family or the owner of real property. It has been held, for example, that he may be an unmarried resident, without immediate relatives, who boards, and who leases the mill in which he operates his business. Delamater v Byrne, 59 How Pr 71, 72 (NY Sup Ct 1879); see also Somerset & Worcester Savings Bank v Huyck, 33 How Pr 323 (NY Sup Ct 1867). If the undertaking is for more than one thousand dollars, the individual surety will always, unless the court orders otherwise or unless a deposit of cash or certain government bonds is offered, be a freeholder since his real property will be required as security under CPLR § 2503.
Subd (b) of this section is derived from the first sentence of CPA § 565 and the last sentence of CPA § 891. There is no reason why this rule, heretofore applicable only to appeal and injunction undertakings, should not be applied to undertakings generally.
Subd (c) of this section replaces the first sentences of CPA §§ 148 and 160, with no change in substance.
Subd (d) of this section replaces RCP 25(5) with no change.
Amendment History
Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd, L 1970, ch 848, § 1, eff Sept 1, 1970.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
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